Can We All Agree that the War Powers Resolution is Dead?

by Peter Spiro

Silence from the White House today on how to rationalize continuing participation in Libya operations notwithstanding the expiration of the WPR’s 60-day-clock. I think this is a relatively gutsy move on the Obama Administration’s part. Why go on pretending that section 5(b) of the Resolution poses any constraint on presidential discretion?

Unlike his predecessors (Bill Clinton in particular, with his pretty weak argument for compliance in the context of the Kosovo bombing), Obama is in effect saying, this law is unconstitutional and I’m not paying any attention to it. It’s not worth taking some transparently evasive action (like halting operations for some short period to try to set the clock back to zero). It doesn’t even merit a statement from my press secretary.

There will be some carping, of course, but Congress won’t do anything about it. (Here’s a new algorithm: if Dennis Kucinich and Rand Paul agree on anything, the opposite is true.) That should pull the plug on a provision that has been on life support since its enactment over President Nixon’s veto in 1973. It will still be in the U.S. Code, but it will have been decisively invalidated by practice.

Should we care? I don’t think so, since the act has never had any impact on executive branch decisionmaking (beyond conformity with the reporting requirement), and never made much sense from either a constitutional or functional perspective. Presidents will still undertake unilateral action for operations not requiring significant resource commitments or casualty risks. But they will still go to Congress when the stakes are high.

Congressional action in support of the mission would underline the U.S. commitment to this remarkable international effort. Such a Resolution is also important in the context of our constitutional framework, as it would demonstrate a unity of purpose among the political branches on this important national security matter. It has always been my view that it is better to take military action, even in limited actions such as this, with Congressional engagement, consultation, and support.

No mention of the War Powers Resolution and no suggestion that congressional authorization is constitutionally mandated. A very credible finesse.

3 Responses

Response…
BUT the WPR (sec. 2) only addresses the President’s c-i-c power, not the President’s authority and duty faithfully to execute the Laws, including international law — including a U.N. S.C. authorization to use force, nor does it address the President’s power as the Executive (executing Laws, including international law). Moreover, Section 8(b), (d)(1)-(2) assures that there was no intent to limit presidential competence to execute relevant treaties of the U.S. (e.g., a U.N. S.C. authorization). See generally 26 Ga. J. Int’l & Comp. L. 15, 19, 21-24 (1996).

Apparently Senators Kerry and McCain introduced a resolution today (Monday, May 23) to authorize continuation of the US involvement. If the resolution comes to a vote, does that mean it will automatically be debated? Or is does the Senate have the option to vote some other way (e.g., show of hands) without a debate? If anyone knows, perhaps they could post a comment here. Thanks.

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